Google to feds: Let us talk about government surveillance, please

Attorney General Eric Holder has prohibited tech companies from revealing what information they're legally required to disclose to the feds. Google wants to lift the gag orders.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Attorney General Eric Holder, shown here earlier today, has not permitted Google to disclose what information it is -- and isn't -- forced to turn over to the feds.
Attorney General Eric Holder, shown here earlier today, has not permitted Google to disclose what information it is -- and isn't -- forced to turn over to the feds. Getty Images

Google today asked the U.S. government to lift a legal gag order and let it clear up speculation and erroneous reports about what information it's forced to turn over to the feds.

In an open letter to Attorney General Eric Holder and FBI Director Robert Mueller asking for "transparency," the Mountain View, Calif.-based company is effectively applying an unusual amount of public pressure to the Obama administration. President Obama has claimed to have "the most transparent administration in history," though critics have argued otherwise.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies were left reeling after a pair of articles last Thursday alleged that they provided the National Security Agency with "direct access" to their servers. By late Friday, however, CNET reported that was not true, and the Washington Post backtracked from its original story on PRISM. In an editorial today, the paper said the process met legal "standards" and was subject to "judicial review."

But for Silicon Valley companies that rely on user trust -- and are trying to usher in a future where more data is stored in the cloud -- even lingering misgivings over privacy are worth eliminating.

Today's letter, signed by David Drummond, Google's chief legal officer, asks for the right to disclose information about how many orders the company receives under the Foreign Intelligence Surveillance Act, and how broad they are. It says:

Google has worked tremendously hard over the past 15 years to earn our users' trust. For example, we offer encryption across our services; we have hired some of the best security engineers in the world; and we have consistently pushed back on overly broad government requests for our users' data.

We have always made clear that we comply with valid legal requests. And last week, the director of national intelligence acknowledged that service providers have received Foreign Intelligence Surveillance Act (FISA) requests.

Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users' data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures -- in terms of both the number we receive and their scope. Google's numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google's initiative. Transparency here will likewise serve the public interest without harming national security.

The Justice Department and the FBI did not immediately respond to a request for comment from CNET.

Google already releases many statistics about government surveillance as part of its transparency report, including, as of March, information on secret National Security Letters sent by the FBI. But a source familiar with the situation said the company has not secured permission to disclose information about secret court orders.

James Clapper, the head of national intelligence, confirmed last week that the Internet companies were receiving legal orders sent to them "pursuant to Section 702 of the Foreign Intelligence Surveillance Act."

After the Foreign Intelligence Surveillance Court limited a Bush-era warrantless surveillance program's scope, Congress enacted the FISA Amendments Act, which established a new procedure for foreign surveillance.

That Section 702 procedure works like this: The Justice Department must demonstrate that its surveillance will not intentionally target anyone present in the United States or any American who's overseas. And the surveillance process must comply with the Fourth Amendment.

Section 702 also requires that the government obtain the secret Foreign Intelligence Surveillance Court's approval of "targeting" and "minimization" procedures, and that the court review the agencies' certification describing how proposed surveillance techniques will comply with the law. Judges must consider whether the targeting procedures are "reasonably designed" to exclude Americans and purely domestic surveillance.

A former government official who is intimately familiar with this process of data acquisition and spoke on condition of anonymity told CNET last week that the government delivers an order to obtain account details about someone who's specifically identified as a non-U.S. individual, with a specific finding that they're involved in an activity related to international terrorism. Both the contents of communications and metadata, such as information about who's talking to whom, can be requested.

Amnesty International and journalists launched a legal challenge to Section 702 (which is sometimes called 1881a, for its location in the law books). They argued their confidential communications with foreign correspondents would be intercepted under Section 702 in violation of the Fourth Amendment. But in February 2013, the U.S. Supreme Court rejected their challenge by a 5-4 vote, with Justice Samuel Alito writing that their allegations were too "speculative" and the Section 702 process is subject to ongoing "oversight" and "review."